Terry Mattingly points to a shift in language and of thinking that could be devastating to religious liberty:

With the sounds of protests echoing across the campus, President Barack Obama knew his 2009 commencement address at the University of Notre Dame would have to mention the religious issues that divided his listeners.

“The ultimate irony of faith is that it necessarily admits doubt,” he said. “It is beyond our capacity as human beings to know with certainty what God has planned for us or what He asks of us.”

With this sweeping statement Obama essentially argued that religious faith contains no rational content and, thus, offers no concrete guidance for public actions, noted Thomas Farr, director of the Berkley Center for Religion, Peace and World Affairs at Georgetown University. This would shock America’s founding fathers or anyone else who has used religious doctrines and arguments in favor of human equality or in opposition to tyranny.

The president’s views were even more troubling when combined with remarks weeks earlier at Georgetown by Secretary of State Hillary Clinton, said Farr, during a conference sponsored by the American Religious Freedom Program of the Ethics and Public Policy Center in Washington, D.C. The daylong event drew a variety of scholars and activists including Catholics, evangelical Protestants, Jews, Eastern Orthodox Christians, Mormons and others.

Clinton’s speech contained repeated references to freedom of “worship,” but none to freedom of “religion.” She also argued that “people must be … free to worship, associate, and to love in the way that they choose.”

Thus, the secretary of state raised sexual liberation to the status of religion and other central human rights, said Farr. This evolving political doctrine is now shaping decisions in some U.S. courts.

“Powerful members of our political class are arguing,” he noted, “that there is no rational content of religion; that religious freedom means the right to gather in worship, but not to bring religiously informed moral judgments into political life; that religious freedom must be balanced by the right to love as one chooses, and that to make religious arguments against that purported right is unconstitutional.”

Mattingly goes on to discuss the recent manifestation of this shift from “freedom of religion” to “freedom of worship”: The Obamacare contraception/abortifacient mandate, which exempts “houses of worship” but not religious individuals or religious institutions that minister to outsiders.

John Garvey, the president of Catholic University, has written an op-ed piece in which he explains why his institution is joining scores of other Catholic groups in filing a lawsuit against the contraceptive & abortifacient mandate in Obamacare. In the course of his essay (in which he mentions also the Hossana-Tabor case involving the LCMS school), Garvey discusses the “wall of separation of church and state,” finding the metaphor’s origins not in Thomas Jefferson (who wanted to protect the state from the church) but, earlier, in Roger Williams (who wanted to protect the church from the state):

When the Supreme Court first considered the issue of aid to parochial schools in the 1947 case Everson v. Board of Education , it invoked separation as a limiting principle. The court quoted Thomas Jefferson’s 1802 letter to the Baptists of Danbury, Conn.: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”

Jefferson was a child of the Enlightenment, suspicious of organized religion. He believed that efforts to establish an official religion led to persecution and civil war.

The metaphor was not original to Jefferson, though. Roger Williams, who founded the colony of Rhode Island on principles of religious tolerance, used it in 1644. History has shown, he observed, that when churches “have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall . . . and made his garden a wilderness.”

Williams had different reasons than Jefferson for preaching separation. Jefferson thought that religion was bad for government. Williams thought that mixing church and state was bad for the church.

These two perspectives often give us the same results. They both warn against tax support for churches and against prayers composed by public school boards. But Williams’s theological metaphor may have been more influential than Jefferson’s political one in the adoption of the First Amendment.

Not just a “wall” of separation but a “hedge” of separation. The church is a garden. The world is a wilderness. Making a hole in the hedge is punished by God who turns the garden into a wilderness. Powerful metaphors. Apply them to current issues.

And yet, is Rogers’ formulation adequate? He was a Baptist, so we see here elements of the doctrine of separation from the world. Is the secular arena more than just a wilderness?

Finalized on March 12, 2012 (and set to go into effect with the 2014 exchanges), the new HHS rule implements Section 1303 of the “Patient Protection and Affordable Care Act.” The new rule imposes mandates on every single enrollee in a qualified health plan that happens to include abortion coverage. In particular, federal law will soon mandate that every single individual enrolled in such a plan make payments to a private fund designated solely to the payment of abortion. This scheme allows Obamacare to get around the controversial issue of government-funded abortions with a new funding source: mandatory private payments by you, the insured.

Here’s how it works. The new rule authorizes issuers to offer abortion coverage as part of their plans in the government-subsidized exchanges. For issuers that voluntarily include abortion coverage as part of their health plans, the new HHS rule mandates the private insurer to compel all enrollees to directly pay a separate abortion premium “without regard to the enrollee’s age, sex or family status.” Not surprisingly, the abortion premium also must be paid without regard to whether the individual has a religious or moral objection to funding other people’s abortions.

The new rule specifies that the abortion premium must be separately itemized on each enrollee’s bill or payroll deduction. The Obama administration’s new rule then directs the issuer to place the abortion premiums into “allocation accounts” to be used “exclusively” to pay for other people’s elective abortion. It’s astounding. It’s also a violation of religious liberty for the reasons set forth in the friend-of-the-court brief that we recently filed to aid the Supreme Court in its review of Obamacare’s individual mandate.

So, if you want to avoid abortion premiums, you can simply pick an abortion-free plan, right? Well, the new HHS rule seems deliberately designed to foil that option. With an audacious snub of the concept of consumer transparency, the HHS rule expressly instructs the issuer to hide the abortion coverage and the mandated separate abortion-premium payment from any advertising or information listings in the state exchanges.

According to the rule: “A [qualified health plan] that provides for coverage of [elective abortion] must provide a notice to enrollees, only . . . at the time of enrollment.” It goes on to provide that the issuer’s advertising in the exchange must provide information “only with respect to the total amount of the combined payments” (without the need to put consumers on notice by breaking out the abortion amount to be billed separately). Thus consumers picking plans will likely have no idea about which ones come with the abortion premium mandate.

Who will end up in these plans? First, many people will accidentally walk into the rule’s trap and buy a policy under which the federal government will force them to make monthly abortion-premium payments — something they would not do if the government mandated transparency (or at least permitted transparency!) about the abortion-premium mandates. Second, many people will end up in these plans if it is the plan chosen by their employers. Third, many people may be forced to select these plans if available alternatives do not have the coverage or doctor networks their families need.

One way or another, millions of Americans will soon find themselves in plans that require these separate abortion payments as a matter of federal law.

The Obama administration has figured out how to let Obamacare cover abortions despite the Hyde Amendment. (P.S.: Why doesn’t the Hyde Amendment prevent government funding for abortion pills, as in the insurance mandate?) Health Insurance companies will have to offer abortions as a premium service for which the insured will have to pay extra. But the extra fee will be no more than $1 per month. From LifeSite:

It’s official. The concern pro-life organizations had about the ObamaCare legislation funding abortions has been confirmed, as the Obama administration has issued the final rules on abortion funding governing the controversial health care law.

Nestled within the “individual mandate” in the Obamacare act — that portion of the Act requiring every American to purchase government — approved insurance or pay a penalty — is an “abortion premium mandate.” This mandate requires all persons enrolled in insurance plans that include elective abortion coverage to pay a separate premium from their own pockets to fund abortion. As a result, many pro-life Americans will have to decide between a plan that violates their consciences by funding abortion, or a plan that may not meet their health needs.

The Department of Health and Human Services has issued a final rule regarding establishment of the state health care exchanges required under the Patient Protection and Affordable Care Act.

As a knowledgeable pro-life source on Capitol Hill informed LifeNews, as authorized by Obamacare, “the final rule provides for taxpayer funding of insurance coverage that includes elective abortion” and the change to longstanding law prohibiting virtually all direct taxpayer funding of abortions (the Hyde Amendment) is accomplished through an accounting arrangement described in the Affordable Care Act and reiterated in the final rule issued today.

“To comply with the accounting requirement, plans will collect a $1 abortion surcharge from each premium payer,” the pro-life source informed LifeNews. “The enrollee will make two payments, $1 per month for abortion and another payment for the rest of the services covered. As described in the rule, the surcharge can only be disclosed to the enrollee at the time of enrollment. Furthermore, insurance plans may only advertise the total cost of the premiums without disclosing that enrollees will be charged a $1 per month fee to pay directly subsidize abortions.”

The Obamacare abortion pill/contraceptive mandate is so obviously a government assault on religious liberty that the courts are sure to overrule it. Right? I’ve been hearing that. Eight lawsuits have already been filed. But the legal issues get complicated, with a precedent that might let the Obama administration have its way. There is, however, a way to trump that precedent, depending on how the issue is construed. Journalist N. C. Aizenman gives a useful overview of how the cases will be argued:

The plaintiffs will argue, among other claims, that the rule, which takes effect Aug. 1, interferes with their First Amendment right to free exercise of religion by effectively compelling them to provide a form of coverage that conflicts with their beliefs.

To win that argument, they will need to clear a major legal hurdle: A landmark 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is “neutral and generally applicable” — meaning that it is not specifically targeted against any religious group — individuals must comply with it even when doing so imposes a burden on their free exercise of religion.

Writing for the majority in that case, Justice Antonin Scalia — a conservative justice known for his strong identification with the Catholic Church — found that to allow otherwise “would be courting anarchy” by making “the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.”

In the last decade, the highest state courts of both New York and California cited the Smith decision in blocking First Amendment challenges to state contraceptive-coverage laws virtually identical to the federal rule.

In both instances, the state courts found that their state’s laws met the “neutral and generally applicable” standard set out in Smith. And in both cases, the U.S. Supreme Court declined to hear an appeal of the lower court’s decision. . . .

In addition to their constitutional challenges, the plaintiffs will try to convince judges that the federal rule violates a 1993 law adopted by Congress in response to the Supreme Court’s Smith decision.

The Religious Freedom Restoration Act signed into law by President Bill Clinton, essentially replaces the “neutral and generally applicable” standard set by Smith with one that is far more stringent. It states that even a generally applicable federal law cannot “substantially burden” a person’s exercise of religion unless the law furthers a “compelling government interest” and does so by the “least restrictive means.”

The plaintiffs argue that because the vast majority of health plans in America already offer contraceptive coverage, the government’s aim to make that coverage virtually universal is not compelling. And they contend the administration could achieve its goal through other means — for example by having the government directly provide contraceptives to women who work for religious organizations that don’t offer it.

Of course the best case scenario would be for the Supreme Court to throw out the whole health care law, which could happen. It could also NOT happen.

In the meantime, though the issue at first seemed to be a loser for the Obama administration–threatening to cost Democrats the Catholic vote–now the Democrats, with the help of the media, have successfully cast the controversy as a Republican attempt to do away with birth control and thus a Republican war against women! That means that the administration is likely to insist that the mandate be enforced.

The great Anthony Esolen reminds us, in the midst of the Obamacare insurance mandate, that contraception is NOT, strictly speaking, a medical issue:

The use of estrogen as contraception is not medical at all. Quite the contrary. A couple who use estrogen to prevent the conception of a child do not ingest the drug to enhance the performance of their reproductive organs, or to heal any debility therein. Their worry is rather that those organs are functioning in a healthy and natural way, and they wish they weren’t. They want to obtain not ability but debility. They want not to repair but to thwart.

Here it is usually argued that the drug is medical because it prevents a disease. But that is to invert the meaning of words. When the reproductive organs are used in a reproductive act, the conception of a child is the healthy and natural result. That is a plain biological fact. If John and Mary are using their organs in that way, and they cannot conceive a child, then this calls for a remedy; that is the province of medicine. It is also the province of medicine to shield us against casual exposure to communicable diseases—exposure that we cannot prevent, and that subjects us to debility or death. Childbearing and malaria are not the same sorts of thing.

The use of artificial estrogen to prevent conception is, in fact, he argues, parallel to the use of artificial testosterone–a.k.a. steroids–by baseball players. (You’ve really got to read how he ties baseball into all of this!)